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Wednesday, July 08, 2009

On Monday. CAAF granted review in United States v. Burleson, No. 09-0258/NA, where the granted issue is:

WHETHER, AT THE TIME OF APPELLANT'S COURT-MARTIAL, ARTICLE 134 (INDECENT ASSAULT), UNIFORM CODE OF MILITARY JUSTICE (UCMJ), WAS AN OFFENSE NECESSARILY INCLUDED IN ARTICLE 120 (RAPE), UCMJ, IN LIGHT OF ARTICLE 79, UCMJ, UNITED STATES v. MILLER, 67 M.J 385 (C.A.A.F. 2009), AND MANUAL FOR COURTS-MARTIAL, UNITED STATES, PT. IV, PARAS. 45.b(1) AND 63 (2005 ED.).

CAAF also specified an issue in the previously-certified case of United States v. Bradley, No. 09-5002/NA, which we discussed here. The newly specified issue is "WHETHER APPELLEE WAIVED THE ISSUE OF THE DISQUALIFICATION OF THE TRIAL COUNSEL BY HIS UNCONDITIONAL GUILTY PLEAS." NMCCA's unpublished decision in the case is available here. United States v. Bradley, No. NMCCA 200501089 (N-M. Ct. Crim. App. Nov. 25, 2008).

5 comments:

The Bradley case confuses me. If it's a "grant," what was the accused appealing, as NMCCA gacve him all the relief he wanted on the issue? Might this be a JAG certification?

Also, this case suggests (again) the merit of O'Connor's Law: the Government should not create avoidabhle appellate issues in guilty plea cases.

The accused agrees he is waiving his motion to dismiss. The accused refuses to agree that he is necessarily waiving his motion to disqualify the TC. Why on God's green earth would you go through with a sentencing hearing on a guilty plea without swapping in some fresh-faced trial counsel who doesn't know anything about the accused's immunized statements? I mean, this is quite an aggravated assault, don't you protect the record by mooting the disqualification issue?

By not doing that, you have an accused who, as I read the NMCCA decision, has literally nothing to lose. His sentence is capped at 4 years. He no doubt got that sentence in part by arguing his acceptance of responsibility. Now having gotten the benefit of his willingnness to accept guilt, this accused can go back and NOT accept guilt and have his exposure capped at the 4 years he got based on the guilty plea.